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K Evin H Ouston v. N Assau C County


February 2, 2011


The opinion of the court was delivered by: Joseph F. Bianco United States District Judge


Joseph F. Bianco, District Judge: Amended Complaint in its entirety pursuant to Rule 12(c) of the Federal Rules of Civil Pro se plaintiff Kevin Houston Procedure. For the reasons that follow, the ("plaintiff") filed the complaint in this action Court: (1) grants the motion to dismiss the under 42 U.S.C. § 1983 on January 11, 2008. Section 1983 claims as to defendants Nassau Plaintiff filed an Amended Complaint on County Police Department, Nassau County, March 3, 2008, alleging Section 1983 claims, and District Attorney Kathleen Rice, (2) as well as state law claims, against the denies the motion to dismiss the Section 1983 following defendants: Nassau County, claims against Detective Robert Dunn, and (3) Kathleen Rice, the Nassau County District grants the motion to dismiss the state law Attorney; the Nassau County Police claims against all defendants without Department, and Detective Robert Dunn. The prejudice. complaint focuses on alleged constitutional violations in connection with the arrest and I.


prosecution of the plaintiff for sexual abuse and attempted rape, which resulted in The following facts are taken from the acquittal on all charges. Amended Complaint. These facts are not findings of fact by the Court, but rather are The defendants have moved to dismiss the assumed to be true and are construed in the light most favorable to the non-moving party. a motion to appoint counsel. On July 22, See Giardina v. Nassau County, No. 08 CV 2010, defendants filed a reply. On January 2007 (JFB) (WDW), 2010 WL 1850793, *1 14, 2011, the Court denied the motion to (E.D.N.Y. May 7, 2010). appoint counsel without prejudice to plaintiff renewing the application at a later stage of the A. The Amended Complaint proceedings, if circumstances warrant such an application. The motion to dismiss is fully According to the Amended Complaint, on submitted.

September 20, 2006, plaintiff was questioned by Detective Robert Dunn of the Nassau County Police Department in connection with a suspected attempted rape. Plaintiff Courts evaluate a motion for judgment on cooperated fully with Detective Dunn and was the pleadings pursuant to Federal Rule of told that he was free to go pending an Civil Procedure 12(c) under the same standard investigation. On April 14, 2006, Detective as a motion pursuant to Federal Rule of Civil Dunn "closed the case citing lack of evidence Procedure 12(b)(6) for failure to state a claim. and no dna evidence." (Am. Compl. at 2.) Nicholas v. Goord, 430 F.3d 652, 657 n.8 (2d On June 29, 2006, plaintiff was arrested by Cir. 2005), abrogated on other grounds Detective Dunn who, according to plaintiff, Samson v. California, 547 U.S. 843 (2006). stated in an arrest report "that after a In reviewing a motion to dismiss pursuant to discussion with the District Attorney's office Rule 12(b)(6), the Court must accept the the decision was made to arrest [plaintiff]." factual allegations set forth in the complaint (Id.) Plaintiff was charged with sexual abuse as true and draw all reasonable inferences in and attempted rape and was incarcerated at favor of the plaintiff. See Cleveland v. the Nassau County jail for over eight months Caplaw Enters., 448 F.3d 518, 521 (2d Cir. prior to trial. (Id.) On or about March 30, 2006); Nechis v. Oxford Health Plans, Inc., 2007, plaintiff was acquitted by a jury on all 421 F.3d 96, 100 (2d Cir. 2005). "In order to counts. (Id.) Plaintiff states in the Amended survive a motion to dismiss under Rule Complaint that he is "claiming false arrest, 12(b)(6), a complaint must allege a plausible and detainment by Kathleen Rice and det. set of facts sufficient 'to raise a right to relief Dunn." (Id.) Plaintiff further states that he is above the speculative level.'" Operating "also claiming defamation of character, and Local 649 Annuity Trust Fund v. Smith slander by all defendants." (Id.) Plaintiff Barney Fund Mgmt. LLC, 595 F.3d 86, 91 (2d seeks $1.5 million in damages. Cir. 2010) (quoting Twombly, 550 U.S. at 555). This standard does not require


B. Procedural History "heightened fact pleading of specifics, but only enough facts to state a claim to relief that On January 11, 2008, plaintiff filed the is plausible on its face." Twombly, 550 U.S. complaint in this Court. On March 3, 2008, at 570. plaintiff filed an Amended Complaint. On September 15, 2009, defendants filed an The Supreme Court recently clarified the answer. On June 15, 2010, defendants filed a appropriate pleading standard in Ashcroft v. motion to dismiss. On July 15, 2010, plaintiff Iqbal, 129 S. Ct. 1937 (2009), setting forth a filed his opposition to the motion, along with two-pronged approach for courts deciding a motion to dismiss. The Court instructed Although plaintiff alleges causes of action district courts to first "identify[ ] pleadings against the Nassau County Police Department, that, because they are no more than "under New York law, departments that are conclusions, are not entitled to the assumption merely administrative arms of a municipality of truth." 129 S. Ct. at 1950. Though "legal do not have a legal identity separate and apart conclusions can provide the framework of a from the municipality and, therefore, cannot complaint, they must be supported by factual sue or be sued." See Davis v. Lynbrook allegations." Id. Second, if a complaint Police Dep't, 224 F. Supp. 2d 463, 477 contains "well-pleaded factual allegations, a (E.D.N.Y. 2002) (dismissing claim against court should assume their veracity and then Lynbrook Police Department); see also Hall determine whether they plausibly give rise to v. City of White Plains, 185 F. Supp. 2d 293, an entitlement to relief." Id. 303 (S.D.N.Y. 2002) ("Because plaintiff has named the City of White Plains as a Where, as here, the plaintiff is proceeding defendant, any claims against the [White pro se, "[c]courts are obliged to construe the Plains Department of Public Safety] are [plaintiff's] pleadings . . . liberally." redundant. WPDPS does not have its own McCluskey v. N.Y. State Unified Court Sys., legal identity, and therefore the claims against No. 10-CV-2144 (JFB)(ETB), 2010 WL it are dismissed."); Polite v. Town of 2558624, at *2 (E.D.N.Y. June 17, 2010) Clarkstown, 60 F. Supp. 2d 214, 216 (citing Sealed Plaintiff v. Sealed Defendant, (S.D.N.Y. 1999) ("[M]unicipal departments in 537 F.3d 185, 191 (2d Cir. 2008) and this State-such as the Clarkstown Police McEachin v. McGuinnis, 357 F.3d 197, 200 Department-are not amenable to suit, and no (2d Cir. 2004)). Nonetheless, even though the claims can lie directly against them."); Wilson Court construes a pro se complaint liberally, v. City of N.Y., 800 F. Supp. 1098, 1101 the complaint must still "'state a claim to (E.D.N.Y. 1992) ("The court also dismisses relief that is plausible on its face'" to survive the claims against the New York City Police a motion to dismiss. Mancuso v. Hynes, 09- Department, which cannot be sued CV-4393, 2010 WL 2131009, at *1 (2d Cir. independently because it is an agency of the May 27, 2010) (quoting Iqbal, 129 S. Ct. at City of New York."). Plaintiff's allegations 1949); see also Harris v. Mills, 572 F.3d 66, against the Police Department are more 72 (2d Cir. 2009) (applying Twombly and properly raised in claims against Nassau Iqbal to pro se complaint). County, which plaintiff has also named as a defendant. Accordingly, the Nassau County Police Department is dismissed as a defendant.


A. Claim Against Nassau County Police


Defendant Nassau County Police

Department argues that the claims against it should be dismissed because it is a nonsueable entity of Nassau County, and that the claims should only be brought against Nassau County. As set forth below, the Court agrees.

B. Claims Against Nassau County District Here, D.A. Rice has absolute prosecutorial Attorney Kathleen Rice immunity because her alleged actions fall squarely within the scope defined by the Defendant Nassau County District Supreme Court. In particular, plaintiff's Attorney Kathleen Rice ("D.A. Rice") claims against D.A. Rice arise from his contends that she is entitled to absolute assertion that she had an insufficient basis to immunity for the claims plaintiff attempts to prosecute plaintiff for sexual abuse and assert against her for acts allegedly committed attempted rape. However, both the Supreme within the scope of her official duties. As set Court and Second Circuit have made clear forth below, the Court agrees. that the decision regarding whether or not to initiate prosecution is a quintessential "'It is by now well established that a state prosecutorial function that is entitled to prosecuting attorney who acted within the absolute immunity. See Imbler, 424 U.S. at scope of his duties in initiating and pursuing 431 (absolute immunity exists for "initiating a criminal prosecution is immune from a civil a prosecution"); Ying Jing Gan, 996 F.2d at suit for damages under § 1983.'" Crews v. 530 ("A prosecutor thus has absolute Cnty. of Nassau, No. 06-CV-2610 immunity in connection with the decision (JFB)(WDW), 2007 WL 4591325, at *13 whether or not to commence a prosecution."); (E.D.N.Y. Dec. 27, 2007) (quoting Shmueli v. accord Johnson v. City of N.Y., No. City of New York,424 F.3d 231, 236 (2d Cir. 00CIV.3626(SHS), 2000 WL 1335865, at *2 2005)). "Prosecutorial immunity from § 1983 (S.D.N.Y. Sept. 15, 2000) (stating that liability is broadly defined, covering 'virtually prosecutorial functions protected by absolute all acts, regardless of motivation, associated immunity "include the decision to bring with [the prosecutor's] function as an charges against a defendant."). Accordingly, advocate.'" Hill v. City of New York, 45 F.3d D.A. Rice is entitled to absolute prosecutorial 653, 661 (2d Cir. 1995) (quoting Dory v. immunity, and plaintiff's § 1983 claims Ryan, 25 F.3d 81, 83 (2d Cir. 1994)). For against her are dismissed.*fn1 example, in Hill, the Second Circuit held that an Assistant District Attorney's alleged acts of, inter alia, "conspiring to present falsified C. Claims Against Nassau County 733-36 (1989), and Monell, 436 U.S. at 692-94). "The policy or custom need not be Defendant Nassau County argues that the memorialized in a specific rule or regulation." claims against the County cannot survive a Kern v. City of Rochester, 93 F.3d 38, 44 (2d motion to dismiss because plaintiff's Cir. 1996) (citing Sorlucco v. New York City Amended Complaint fails to identify any Police Dep't, 971 F.2d 864, 870 (2d Cir. governmental policy or custom that caused a 1992)). A policy, custom, or practice of the constitutional injury. As set forth below, the municipal entity may be inferred where "'the Court agrees. municipality so failed to train its employees as to display a deliberate indifference to the In order to state a claim for relief under constitutional rights of those within its Section 1983, a plaintiff must allege: (1) the jurisdiction.'" Patterson, 375 F.3d at 226 deprivation of any rights, privileges or (quoting Kern, 93 F.3d at 44). immunities secured by the Constitution and federal law, (2) by a person acting under the However, a municipal entity may only be color of state law. 42 U.S.C. § 1983. Section held liable where the entity itself commits a 1983 does not itself provide substantive wrong; "a municipality cannot be held liable rights, but in fact offers "a method for under § 1983 on a respondeat superior vindicating federal rights elsewhere theory." Monell, 436 U.S. at 691; see also conferred." Patterson v. Cnty. of Oneida, 375 Segal v. City of N.Y., 459 F.3d 207, 219 (2d F.3d 206, 225 (2d Cir. 2004) (quoting Baker Cir. 2006) ("Monell does not provide a v. McCollan, 443 U.S. 137, 144 n. 3 (1979)); separate cause of action for the failure by the Sykes v. James, 13 F.3d 515, 519 (2d Cir. government to train its employees; it extends 1993) ("Section 1983 itself creates no liability to a municipal organization where substantive rights; it provides only a that organization's failure to train, or the procedure for redress for the deprivation of policies or customs that it has sanctioned, led rights established elsewhere.") (citing City of to an independent constitutional violation."); Oklahoma City v. Tuttle, 471 U.S. 808, 816 Ricciuti v. N.Y.C. Transit Auth., 941 F.2d 119, (1985)). 122 (2d Cir. 1991) ("A municipality and its supervisory officials may not be held liable in Under Monell, a municipal entity may be a § 1983 action for the conduct of a held liable under Section 1983 where a lower-echelon employee solely on the basis of plaintiff demonstrates that the constitutional respondeat superior."); Vippolis v. The Village violation complained of was caused by a of Haverstraw, 768 F.2d 40, 44 (2d Cir. 1985) municipal "policy or custom." 436 U.S. at ("A plaintiff who seeks to hold a municipality 694-95; Patterson, 375 F.3d at 226 (citing Jett liable in damages under section 1983 must alleged to be unconstitutional by its false arrest/false imprisonment claims against employees below the policymaking level him should be dismissed because he had solely on the basis of respondeat superior."). probable cause to arrest and detain plaintiff.

As set forth below, the Court concludes that

In the instant case, the Court finds that the claims against Detective Dunn survive a plaintiff's Monell claim against the County motion to dismiss because this "probable pursuant to Section 1983 must be dismissed as cause" determination cannot be made in the a matter of law because plaintiff has failed to instant case at this early juncture given the identify any policy or custom that is the basis limited information available to the Court. for such a claim in connection with the alleged violation of his constitutional rights. The Second Circuit has established that See, e.g., Walker v. City of New York, No. 07- "[t]he existence of probable cause to arrest CV-1543 (JG)(LB), 2007 WL 1340252, at *2 constitutes justification and 'is a complete (E.D.N.Y. May 4, 2007) (dismissing the claim defense to an action for false arrest.'" Weyant against the City of New York where "there are v. Okst, 101 F.3d 845, 852 (2d Cir. 1996) no facts alleged in the complaint to support a (quoting Bernard v. United States, 25 F.3d 98, claim against the City of New York. Even 102 (2d Cir. 1994)). "In general, probable liberally construing plaintiff's claim, nothing cause to arrest exists when the officers have suggests that the alleged constitutional knowledge or reasonably trustworthy violations were attributable to any municipal information of facts and circumstances that policy or custom."); Tropeano v. City of New are sufficient to warrant a person of York, No. 06 CV 2218 SLT, 2006 WL reasonable caution in the belief that the person 3337514, at *4 (E.D.N.Y. Oct. 31, 2006) to be arrested has committed or is committing ("The municipality cannot be held liable a crime." Id. Furthermore, "[t]he validity of simply on a theory of respondeat superior . . an arrest does not depend on an ultimate . plaintiff cannot prevail where as here she has finding of guilt or innocence." Peterson v. not identified a policy or custom that caused Cnty. of Nassau, 995 F. Supp. 305, 313 the denial of a constitutional right. . . . (E.D.N.Y. 1998) (citing Pierson v. Ray, 386 Therefore, the Court dismisses the claims U.S. 547, 555 (1967)). "Rather, the court against the City of New York . . . ."). looks only to the information the arresting Therefore, given plaintiff's failure in his officer had at the time of the arrest." Id. Amended Complaint to allege any policy or (citing Anderson v. Creighton, 483 U.S. 635, custom that can form the basis for a plausible 641 (1987)). Moreover, on a motion to Monell claim, the lawsuit against the County dismiss, the "question of whether or not cannot survive a motion to dismiss.*fn2 probable cause existed may be determinable as a matter of law if there is no dispute as to D. Section 1983 Claim against Detective the pertinent events and the knowledge of the Robert Dunn officers." Weyant, 101 F.3d at 852.

Detective Robert Dunn argues that the In the instant case, the Amended Complaint alleges, among other things, that:and was told he was free to leave pending an a basis for dismissal. The Court must be able investigation; (3) on April 14, 2006, Detective to determine from the pleadings what Dunn closed the case for lack of evidence; (4) information defendant Dunn had available at on June 29, 2006, plaintiff was arrested by the time of arrest and whether, in light of Detective Dunn; and (5) after being plaintiff's interview or any other information incarcerated for over eight months, defendant available, there were any circumstances to was acquitted in March 2007 on all counts. raise doubt as to the victim's veracity. These The Court concludes that, construing the pro determinations cannot be made in this se complaint liberally, these allegations are particular case at the motion to dismiss stage. sufficient to allege a plausible false arrest/false imprisonment claims against Accordingly, after carefully reviewing the Detective Dunn. complaint and drawing all inferences in plaintiffs' favor from the facts alleged therein, Defendant Dunn argues that he had the Court cannot conclude at this juncture, as probable cause to arrest plaintiff based upon a matter of law, that defendant Dunn had the report by criminal complaint filed by the probable cause to arrest or confine plaintiff. victim. (Def. Mem. of Law at 10.) "An See Mitchell v. Cnty. of Nassau, No. CV-05-arresting officer advised of a crime by a 4957, 2007 U.S. Dist. LEXIS 38711, at *36 person who claims to be the victim, and who (E.D.N.Y. May 24, 2007) ("[P]laintiff . . . has signed a complaint or information alleges that [defendant] intentionally and charging someone with the crime, has maliciously filed an unsubstantiated criminal probable cause to effect an arrest absent complaint against her without adequate circumstances that raise doubts as to the investigation together with a supporting victim's veracity." Singer v. Fulton Cnty. deposition in which he urged her arrest. . . . Sheriff, 63 F.3d 110, 119 (2d Cir. 1995). Accordingly, at the pleadings stage, the However, none of the information provided by amended complaint arguably states a claim for the victim to Detective Dunn, nor any of the false arrest . . . ."); Caidor v. M & T Bank other information available to Detective Corp., No. 5:05-CV-297 (FJS/GJD), 2006 Dunn, is before the Court in connection with U.S. Dist. LEXIS 22980, at *19 (N.D.N.Y. the motion to dismiss. In other words, the Mar. 27, 2006) (denying motion to dismiss allegations in the Amended Complaint are false arrest claim where "[i]t is . . . impossible insufficient for the Court to conclude at this to derive from the complaint exactly what juncture that Detective Dunn had probable information was available to the officers . . . at cause to arrest as a matter of law. Although the time of Plaintiff's arrest . . . ."). Of defendants argue that the references in the course, defendant Dunn is free to raise this complaint to Detective Dunn interviewing the issue again at the summary judgment stage if plaintiff and consulting with the D.A.'s Office he concludes, following discovery, that the are sufficient to establish probable cause to undisputed facts establish the probable cause arrest, the Court disagrees. These procedures, to arrest and detain plaintiff. in of themselves, do not provide the critical information necessary for the Court to E. State Claims properly make the "probable cause" assessment question that defendant Dunn is Finally, defendants argue that plaintiff's urging the Court to consider at this juncture as state claims for defamation of character are Section 50-e(5) provides that a court "Notice of claim requirements are "[u]pon application" of a plaintiff may, in its construed strictly by New York state courts. discretion, extend the time to serve a notice of Failure to comply with these requirements claim. However, although the Court of ordinarily requires a dismissal for failure to Appeals has not ruled on the issue, district state a cause of action." Hardy v. New York courts in the Second Circuit have routinely City Health & Hosp. Corp., 164 F.3d 789, found that they lack jurisdiction to even 793-94 (2d Cir. 1999) (internal quotations and consider such an application. In Corcoran v. citations omitted); see Horvath v. Daniel, 423 New York Power Authority, 202 F.3d 530, 540 F. Supp. 2d 421, 423 (S.D.N.Y. 2006) (2d Cir. 1999), the court noted that the ("Absent a showing of such a Notice of "appropriate state court may extend the time Claim, the complaint may be dismissed for to file a notice of claim" under Section 50-e, failure to state a cause of action.") (internal but declined to decide "whether the federal quotation marks omitted). Accordingly, for court [had] such jurisdiction." This Court the state law claims asserted in this case, agrees with the overwhelming weight of "[t]he failure to file a notice of claim is fatal authority among district courts in the Second unless the action has been brought in the Circuit and finds that Section 50-e(7) permits public interest, such as a class action brought only certain state courts-"'the supreme court to protect civil rights, or a court has granted or . . . the county court' in certain leave to serve late notice." Pustilnik v. Hynes, counties-to consider and to grant an No. 99-CV-4087 (JG), 2000 WL 914629, at application for an extension of time" in this *6 (E.D.N.Y. June 27, 2000). context. Henneberger v. County of Nassau, 465 F. Supp. 2d 176, 200 (E.D.N.Y. 2006)

The Court finds that the instant action, a (quoting N.Y. Gen. Mun. Law § 50-e(7) and private civil rights lawsuit, has not been collecting cases); Brown v. Met. Transp. brought in the public interest. See, e.g., Auth., 717 F. Supp. 257, 258-61 (S.D.N.Y. Feldman v. Nassau Cnty., 349 F. Supp. 2d 1989) ("Until the state legislature amends 528, 539 (E.D.N.Y. 2004) (finding [Section] 50-e(7) to include federal trial employment discrimination claim that "seeks courts, [the court has] no choice but to dismiss the enforcement of [plaintiff's] private for lack of jurisdiction plaintiff's application interests" is not in public interest); Atkins v. to file a late notice of claim or to have his Cnty. of Orange, 251 F. Supp. 2d 1225, 1235 notice of claim deemed timely filed.")

(collecting cases). Therefore, in this case, the Court lacks jurisdiction, pursuant to Section 50-e(7), to deem plaintiff's state law claims * * * against the County defendant timely filed or to grant an extension of time to file.*fn3 Thus, Plaintiff is pro se. The defendants are because plaintiff failed to serve a timely represented by Office of the Nassau County notice of claim on the County, all of his state Attorney, One West Street, Mineola, New law claims are dismissed without prejudice. York 11501, by Diane C. Petillo, Esq.

See Keating v. Gaffney, 182 F. Supp. 2d 278, 294 (E.D.N.Y. 2001) (dismissing NYHRL claims for failure to serve timely notice of claim).


For the reasons stated above, the Court:

(1) grants the motion to dismiss the Section 1983 claims as to defendants Nassau County Police Department, Nassau County, and District Attorney Kathleen Rice, (2) denies the motion to dismiss the Section 1983 claims against Detective Robert Dunn, and (3) grants the motion to dismiss the state law claims against all defendants without prejudice. The parties shall proceed with discovery on the Section 1983 claims against Detective Robert Dunn under the direction and supervision of Magistrate Judge Wall.


February 2, 2011

Central Islip, New York

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